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I. Introduction to Tort Law
 Area of law concerned with non-criminal wrongdoing for which there is liability.
 It’s mission is to further our government’s objective of making us safe and free.
 How far can you go to the defense of your self or property before you’ve flipped the objective on its head?
Functions of Tort Law
1) Corrective Justice – restoring Moral Order to fairness
2) Compensation – covering victims’ expenses, pain and suffering. Attempt to place the victim in
the position they would have been prior to the wrongdoing.
3) Deterrence – wrongful injuries burden society and cost tax $. Want to impose damages that
deter similar intentional conduct from would be tortfeasors.
Sources of Tort Law
1) Judicial Precedents (Case Law)
2) Statutes codifying Tort Law
3) Secondary Authority (Restatement,Treatises)
Calabrese, Costs of Accidents
 Overarching Goal of tort law is to reduce the cost of accidents to society.
 1º Costs: Reduce Number and Severity of Accidents
Forbid or Overprice dangerous activity, Incentives, tough regulations, bar recovery
 2º Costs: Allocate Costs
Loss spreading thru insurance, Deep pockets and efficient bearers of risk
 3º Costs: Keep Admin Costs down
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II. Intentional Physical Tort
BATTERY : Intentional infliction of harmful or offensive bodily contact.
 Protects the physical integrity and dignity of the person against deliberate infliction of harmful or
offensive contact.
 Volitional Act
 Intent – purposeful or knowing conduct
 Contact – direct of indirect
 Causation
 Harm or Offense
 Not Consensual nor Privileged
Act
 External manifestation of the actor’s will is necessary for an act. There cannot be an act without
volition. (Rest, 2d)
Freedom of actor’s will – reactively grabbing someone while falling may excuse one
from liability.
Intent
 Purposeful or Knowing Conduct
 Transferred Intent
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Bodily contact must be intentional (Doe v. Durtschi)
Only need intent to contact not intent to physically harm P. (White v. Univ. Idaho)
Intentional tort does not require mental capacity to recognize wrongfulness. (Ellis v.
D’Angelo)
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Children:
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4yr old held to standard of children of like age/maturity. (Ellis v. D’Angelo)
P has mental capacity to realize conduct might lead to injury.
5yr old can be liable if have the mental capacity to form requisite intent to make contact
occur. (Garrat v. Dailey)
6yr old can be liable w/o intent to cause harm. (Baldinger v. Banks)
Insurance Policies: Cts interpret intent more liberally to rule injury was not intentional.
They don’t want to deny people’s valid insurance claims since Ins. only covers accidents, not
intentional torts.
 Injury was not intentional, but the unintended result of an intentional act.(Baldinger v.
Consolidated Mut. Ins.)

Insane: Allen does not believe criminally insane should be held liable for criminal
wrongdoing though they may be civilly liable
 Insane persons are liable for their intentional torts. A rational choice is not a requirement
of intent since irrational reasons and motives may form intent. (Palmatier v. Russ)

INNOCENT PARTY RULE: “where 1 of 2 innocent persons must suffer loss from an act
done, it is just that it should fall on the one who caused the loss rather than upon the
other who had no agency in producing it and could not by any means have avoided it.”
(Vincent v. Lake Erie)
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Workers Compenstion: Workers Comp limit typically set by state statute. Claims are
limited, unless there was an intentional wrongdoing. Lawyers will attempt to exploit potential
to earn more $ by spinning intent,
 Substantial Certainty Test: If injury is substantially certain to occur as a consequence of
employer’s intended action = intent to injure. Not so easy to show this. (Beauchamp v.
Dow Chem)
 True Intentional Tort Test: “actual, specific, and deliberate intent to injure” standard for
liability against employer’s act. (Griffin v. George’s)
 Employer not liable for battery since act was not acted Knowingly or Purposefully.
(Serna v. Statewide Contractors)
Contact
 Includes contact with something physically attached to or close to the victim.
 Needs to be looked at in context of culture, class, and race.
Harm / Offense
 Was contact offensive to a reasonable person?
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Includes offensive touching of anything connected to the P.
i.e. plate snatching (Fisher v. Carrousel Motor Hotel)
Objective Standard: Must offend a reasonable sense of personal dignity, not irrational
sensitivity. (Brzoska v. Olson – offended by Dentist w/ HIV)
Jury awards may include compensatory and reasonable punitive damages to deter
offensive battery/assault. (Jones v. Fisher – Teeth snatchers)
Not Consensual or Privileged
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Physician performing non-emergency treatment w/o consent constitutes an offensive
battery. (Mink v. U Chicago – DES exp on pregnant women)
Good Intentions Don’t Count: Resetting a broken arm w/o consent constitutes battery.
(Clayton v. Roller Skating Rink)
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III. Intentional Personal Tort w/o Contact
ASSAULT: The intentional causing of harmful or offensive contact or apprehension of such contact.
 2-sided tort, req’ing victim to experience apprehension of harm/offense
 Remedy for assault is aimed at making us feel safe in a civilized society.
 Restatement of Torts, 2d (1965)
§21. Assault:
1) An actor is subject to liability to another for assault if:
a) he acts intending to cause a harmful or offensive contact with the other
person or a third person, or an imminent apprehension such a contact, and
b) the other is thereby put in such imminent apprehension
APPREHENSION
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Must be conscious to apprehend harm or offense. (Wilson v. Bellamy – unconscious rape
victim)
Assault victim must have knowledge of harmful or offensive conduct to produce
apprehension. (State v. Barry – didn’t see rifle aimed at him)
NO CONTACT REQ
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Unsuccessful battery w/o contact is still assault (I De S and Wife v. W De S)
Waving an unloaded gun in a threatening manner still assault. (Beach v. Hancock)
OVERT ACT
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Some physical act or gesture must be present to suggest the harm/offense. (State v. Ingram)
Threat alone, w/o present ability to carry it out is not Assault. (Read v. Coker)
IMMINENT
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Threat must be of harm in the imminent future to be assault. (Brower v. Ackerley)
TRANSFERRED INTENT: P put in apprehension of harm when D intended to harm 3d
person. (Rest 2d, §33)
IIED: Intentional infliction of emotional distress
 Cts must balance recognizing legit. feelings of being wronged with litigating the slightest insult.
 1947 Restatement: The interest in freedom from severe emotional distress is regarded [by tort law] as of
sufficient importance to require others to refrain from conduct intended to invade it.
 Intentional or Reckless Infliction (Act) – Intent to cause severe emotional distress or mental
anguish
 Extreme and Outrageous Conduct – Words are enough, as long as outrageous
 Result of Severe Emotional or Mental Distress
 Causation – Not liable to 3d persons unless family D knew was there.
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o
o
Serious threats to physical wellbeing (State Rubbish Collectors v. Siliznoff)
Liability for emotional distress arising proximately from D’s outrageous conduct. (Eckenrode
v. Life of Am. Ins.)
Expert proof is gen’ly not necessary to establish serious mental injury. (Miller v. Willbanks)
Ct. has no remedy for type of pain caused by withdrawal from planned marriage. (Jackson v.
Brown)
Willing sexual relationship between consenting adults does not give rise to IIED.
 Dissent: Position of trust created a higher duty which was breached, such that consent
should not bar IIED action. (Schieffer v. Catholic Archdiocese of Omaha)
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IV. Intentional Interference w/ Property
CONVERSION: Any act of dominion wrongfully exerted over another’s personal property in denial of or
inconsistent with his rights therein.
 Less serious interferences fall under Trespass.
 Damages reflect the full value of the converted property, not the property itself.
 Rest, 2d: Conversion, “an intentional exercise of dominion or control over a chattel which so seriously
interferes with the right of another to control it that the actor may justly be required to pay the other the full
value of the chattel.”
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Intentional Act
Dominion or Control
Chattel or Property involved
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Dominon: Conversion req’s keeping property owner from control of the property, whether or not it
is being used. (Zazlow v. Kroenert)
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Photocopying does not satisfy exercising sufficient dominion over property. (Pearson v. Dodd)
o Exception: Info w/ commercial value that is substantially diminished by copying would be
conversion, i.e. Unauthorized copy of patents, copyrights, trade secret intended for sale.
Body parts and Cell lines: Public policy is distasteful of the commoditization of body parts. When
a scientist orders a cell line they’re not paying for the cells but for the service involved.
Conversion req’s that P have a sufficient ownership interest in them. (Moore v. UC Regents –
patient did not have a sufficient interest in cells, nor did he partake in the inventive process)
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TRESPASS: Intentional interference with the interest in the exclusive possession of someone’s property.
 D enters P’s land, or causes another person or object to enter land.
 Action against D can only be brought by property owner
Intent
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Injury cause w/o negligence nor intent does not constitute trespass. (Randall v. Shelton)
Mistake still satisfies Intent
 May have Transferred Intent – Trespassing on someone else’s land
 Requisite intent for trespass in NY: 1) intend act which amounts to or produces unlawful
invasion, 2) has good reason to know/expect damage to occur. (Scribner v. Summers)
 Children are liable for torts as an adult – satisfied intent to act, not nec. to cause harm.
o except where age prevents them from forming the requisite intent to complete the act.
(Cleveland Park Club v. Perry – tennis ball in drain)
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D liable for remaining on the land after permission has been withdrawn. (Rager v. McCloskey)
Trespass may consist of acting in an unauthorized manner, exceeding the scope of permission.
(Cartan v. Cruz Construction); Trespass once entrant has moved beyond invitation or
permission. (Copeland v. Hubbard Broadcasting)
D carried onto land involuntarily is not liable for trespass, while the carriers are. (Smith v. Stone,
Kings Bench 1648.
Nonpermissive entrance even under threat of violence does not excuse trespass. Injured party
must have some recourse. (Gilbert v. Stone, Kings Bench 1648)
Damages
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Only nominal damages awarded where no actual harm occurred.
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NUISANCE: Intentional interference with the interest in the use and enjoyment of land.
 Intent means knowledge that the invasion of another’s interest is resulting or substantially certain to
result. (Rest §882)
 Damages are measured by the discomfort and deprivation of the healthful use and comforts of the
property, not by the fair market value of land. (Wheat v. Freeman Coal Mining)
 Nuisance must be substantial and unreasonable, such as would be offensive or inconvenient to
a normal person. (Washington Suburban Sanitary Commn v. Cae-Link Corp, 1993)
 An actionable nuisance is not measured by its effect upon the hypersensitive. (Jenkins. v. CSX
Transportation)
PRIVILEGED INVASION
 Gov’t taking must be compensated under 5th Amd. (Monongahela)
 Extreme Emergency:
 Troop occupancy – Individuals may destroy property w/o liability to avert impending peril
(Harrison v. Wisdom)
 Fire – Can destroy property that would add fuel according to higher Natural Law. (Surocco)
Privilege to act reasonably in protection of own property, although increasing hazard to others’
property. (Comm. Union Assurance v. PG&E)
 Police Action – Damage or destruction of property from valid exercise of police power does
not req’r compensation under compensation clause. (Customer Co. v. Sacramento, 1995)
o Municipality must compensate for taking or damage of innocent 3d party’s property
caused by police doing their job. (Wegner v. Milwaukee, Minn.1991)
 Storm – Entrance upon other’s personal property, otherwise a trespass, is privileged out of
necessity in emergency situations. (Ploof v. Putnam. Vt. 1908)
 Recovery after Flood – One may recover personal property carried onto land of another by nat’l
disaster w/o being liable for nominal damages. (Polebitzke v. Johnweek Lumber, Wis.1921)
o
o
Innocent Party Rule: Where 2 innocent parties, the one having preserved his own
property at the expense of the other’s property must compensate. (even in
emergency where there is no legal fault.) (“Mataafa Blow”, Vincent v. Lake Erie)
o Alt theory is to split the difference
Land – No privilege to protect one’s land at the expense of another’s land, even w/
extreme weather. (Whalley v. Lancashire, 1884)
FIMA – Today gov’t compensation would come into place, distributing cost not among parties but
among public. No one person has to pay an inordinate burden. Limits costly litigation that might
arise in a Natural Disaster situation.
 Social Utility/Harm Balancing Test:
Where Utility of interference to D and society far outweighs the Gravity of Harm to P’s property, no injunctive
relief granted. (Crescent Mining v. Silver King)
DEFENSES
CONSENT
 Express consent, Implied consent, and Repeated consensual participation are affirmative
defenses to intentional torts. However, acquaintance or intimacy does not substitute consent nor
excuse liability for tortuous conduct.
 Consent is judged by the objective manifestation – how conduct appears to a reasonable
person.
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Implied Consent exists when P’s conduct reasonably appears to constitute consent.
(O’Brien v. Cunard Steamship)
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Invitation of conduct suggests consent and shields D from liability for assault. (Kirschbaum
v. Lowrey)
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Intimacy/Acquaintance does not create implicit consent to excuse tortiousness of
battery/assault. (Markley v. Whitman – pushing game)
Coworker Acquaintance did not excuse liability for battery when there was no consent.
(Allen v. Payne & Keller Co.)
Sexual Relations: Husband liable for battery for knowingly gave wife VD. (Kathleen v.
Robert)
o Not liable when husband didn’t know he was infected thru extramarital affair until after
passing on HPV to wife. (McPherson v. McPherson)
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Regular consensual participation in a dangerous activity excuses D’s liability from
intentional battery resulting from the activity. (McAdams v. Whitman – friendly boxing)
o Exceeding the Scope: Action that exceeds the scope of P’s consent to certain conduct
or dangerous activity is no longer considered privileged. (Hackbart v. Cinncinati
Bengels).
o Exceeded scope of consent to sexual relations. (Kathleen v. Robert)
o Revocation of Consent (resistance) makes a harmful/offensive act immediately
unlawful. (State v. Williams – wall hanging ceremony from benevolent society)
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Invalid Consent: Coercion, Minors, Intoxicated, Unconscious(unless medical
emergency)
Children cannot be coerced into giving consent, particularly in sexual abuse/molestation
cases. (Elkington v. Faust – sexual abuse of adopted daughter)
SELF-DEFENSE
 Principle affirmative defense to Battery.
 D claiming Self-Defense may use force proportional to that which he is defending against.
 Deadly force, intended or likely to cause death or serious injury, is highly restricted.
 Given the option to flee or tackle guy w/ pitchfork, one can tackle. (Fraguglia v. Sala)
 Showing Excessive Force requires intent to inflict unnecessary injury. (Dupre v. Maryland
Mgmt. Corp.)
Deadly Force
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Objective Standard: What a reasonable person would do in self-defense (Hattori v. Peairs,
La, 1995) Deadly Force requires reasonable grounds for the belief that one will suffer
death or great personal injury. (Fixico v. State)
Given the option to flee or kill in self-defense, should flee. (Commonwealth v. Drum)
Defending property: Value of human life is greater than interest of property owner to
exclude. (Rest, §85); Spring gun was unreasonable force to defend against trespassers.
(Katko v. Briney)
Self-Defense in DV
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Battered Woman’s Syndrome must be treaded as a “continuing tort”. (Cusseaux v. Pickett)
Subjective Standard: Jury should be instructed to view circumstances from D’s POV to
determine if they are sufficient to create reasonable belief of imminent harm. (State v.
Leidholm, ND, 1983); Wash. looks at all facts and circumstances known to D claiming selfdefense. (State v. Wanrow, 1977)
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DEFENSE OF OTHERS
 Objective Standard is used – You have to be right!
 One who goes to the aid of a 3d person does so at his own peril. (People v. Young – good
faith assault on police officer in civilian dress)
o Dissent: Shouldn’t be guilty when acting in good faith; discourages good samaritanism.
 Privileged to protect an employee is a defense against assault/battery. (Frew v. Teagarden)
RECAPTURE OF CHATTEL
 Can’t use force to recapture chattel when a peaceable means is available and when converter is
not in flight.
 If one has entrusted property to another, owner cannot use personal force against them if
they honestly, though erroneously believe they own it. (Kriby v. Foster)
 Privilege to recapture a stove does not entitle use of force in repossessing property. (Lamb v.
Woodry, Or.1936)
EGGSHELL SKULL NOT A DEFENSE
Intentional Torts:
 D is liable for intentional tort against injured P, despite fact that P is hypersensitive to injury that
normally would not inflict major harm. (Basberg v. Putney)
 “Thin Skull Rule” applies to intentional torts, (Poole v. Copland, NC,1998), and doesn’t require
foreseeability, (Derosier v. N.E. Telephone & Telegraph Co., NH, 1925)
 The victim’s previous state of ill health or higher propensity for injury will not prevent full recovery
for battery/assault. (Watson v. Rheinderknecht, 1901)
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V. Accident Law – Birth of Negligence
Strict Liability for Accidents (Outdated)
Trespass against another must be compensated, unless unavoidable accident. (Case of Thorns, 1466)
Liability for act causing injury despite lack of will (Weaver v. Ward, 1616)
Exercise of Care
Not liable for trespass unpreventable from prudence/care. (Vincent)
Modification of the Rule! Separated Liability for trespass into categories of negligence(careless) and
intentional(willful). (Brown v. Kendall – Separating dogs)
No liability for injuries from unavoidable accident, while acting lawfully. (Nitro-Glycerine Case)
Ordinary Prudence standard of care for shipper not at fault
No negligence or fault, no liability. (Brown v. Collins – Horse startled by train)
VI. Duty of Care
 Defendant is not liable for negligently causing P’s physical harm if Ct. determines he owes no duty to the
P. (Rest 3d, §7)
 Gen’l Duty of Reasonable Care – Default Standard of negligence liability for physical harm.
 Gen’l duty to refrain from action which would cause foreseeable physical harm to others.
(Rockweit v. Senecal, Wis. 1995)
o Even if all the elements are met, public policy considerations may preclude imposing liability
on the D. (Miller v. Wal-Mart Stores, Wis.1998)
DUTY ANALYSIS performed by Courts looks at:
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Magnitude of Foreseeable Risk
Burden of Risk Prevention
Cost/Benefit Analysis: Hand Formula: B < P L
(Burden of prevention < Probability of Injury x Severity of Injury)
Rationale: Not efficient or reasonable for society to invest in prevention of improbable loss, since the
burden will be higher than the harm prevented. (Krayenbuhl)
Foreseeable Risk

Detachable Voltron “Spinning Laser Blade” posed an unreasonable and foreseeable risk to
children. (Lugo v. LJN Toys)
o Conduct which does not create a reasonably foreseeable risk of harm does not, in the
contemplation of the law, establish a duty. (Van Skike v. Zussman – toy pistol lighter)
o Creation of a legal duty requires more than the mere possibility of occurrence. (Cunis v.
Brennan)
Burden of Risk Prevention
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Minimal risk of injury does not justify imposition of such a heavy burden on business and public
who ultimately pays. (Clinton v. Commonwealth Edison – electrical line)
D should not be liable to a legal duty that imposes an impractical burden. (Kimbar v. Estis, flood
lighting a forest!)
REASONABLE PERSON STANDARD
 “Reasonable Person of Ordinary Prudence Acting Under the same Circumstances”
 Objective Assessment: abstract ordinary being who always acts the same in like circumstances.
 Use the objective prudent person standard as the default duty of care. (Vaughan v. Menlove)
 Subjective Assessment: Reasonable person with similar capacities and traits as the individual
being judged. Problems:
o Discourages people from being more careful
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o
o
Discourages us from listening to expert advice
Administrative nightmare
 SUDDEN EMERGENCY RULE: Allows juries to find person in a sudden emergency to be held to
a different standard of care, if: (1) no antecedent negligence; (2) no time to contemplate the
best reaction. Antecedent negligence denies application of sudden emergency doctrine.
(Northland Ins. v. Avis)
 Ct. uses broader application of this rule by encompassing sudden emergencies within
“under the circumstances” language emphasizing the reasonable person standard.
(Myhaver v. Knutson)
o A narrower application would emphasize the Sudden Emergency Rule as the exception to
the gen’l rule and may sway jury to disregard other circumstances and the default duty..
 REST, 3d: LIABILITY FOR PHYSICAL HARM
(a) Disability
Standard of Care is that of a reasonably careful person with the same disability.
*Not simply the objective standard.
(b) Sudden Incapacitation or loss of consciousness brought on by physical illness, resulting
in substandard conduct, is considered neg. only if reasonably foreseeable.
(c) Mental or Emotional Disability
Mental or emotional disability is not taken into account unless the actor is a child.
*(d) Sudden Incapacitation or loss of consciousness from mental illness does not excuse
substandard conduct
o (tho Allen thinks it should excuse liability the same way as (b), unless it was reasonably
foreseeable. Knowing what we do about brain chemistry, there should be another category
analogous to (b))
As a matter of law, Tort assessment of duty of care treats mental and physical disabilities
differently.

Children are held to standard of care of a reasonable person of like age and experience.
(Mastland v. Evans Furniture)
o Exception: Children engaged in adult activities, such as operating a motor boat, are held to
an adult standard of care. (Dellwo v. Pearson)
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Insane/Mental Incapacitation:
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Insanity of tortfeasor does not justify an exception to the gen’l rule holding tortfeasors to the
reasonable person standard, despite lack of ‘subjective’ fault. Ct’s aim is redress for the
given injury. (Jolley v. Powell)
Insanity is not a defense in negligence cases, historical basis in strict liability w/o regard to
fault of individual (Rest 2d). Policy basis: (1) Innocent Party Rule; (2) Induce caretakers to
restrain and control insane persons; (3) Discourage false claims. (Breunig v. Am Family Ins.)
If D loses control of a car due to mental incapacitation, liability if there was notice of
forewarning.
o Exception in (Breunig v. Am Family Ins.) Not liable for mental incapacitation equivalent
to physical causes like sudden heart attack, epileptic seizure, stroke, if there was no
notice of forewarning to D.
o Exception: Ct in (Berberian v. Lynn) relaxed the reasonable person standard to a
flexible capacity-based standard to consider D’s mental disability(Alzheimer’s) in
determining liability.
In assessing the gen’l duty of care to a Pedophile, an ordinary prudent person would avoid
situations in which he would be tempted conduct themselves unlawfully. (CTW v. BCG & DTG)
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INTERVENING CAUSATION: Tortfeasor is liable for the foreseeable acts of an intervening party. Gen’l
duty includes the duty not to expose another to harm from the reasonably foreseeable conduct of a 3d
person. (Lugtu v. CHP – freeway traffic stop, sideswiped)
CUSTOMARY STANDARDS: Have weight but are not conclusive. Only give context to jury.
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In light of evolving technological equipment(radios) and improved safety practices, customary
standards may be too slack in preventing injury. (TJ Hooper)
Failure to have safety equipment that is not commercially available(airborne radar) may excuse
contributory negligence of P. (NW Airlines v. Martin, 1956)
PROFESSIONAL STANDARDS: Are usually conclusive and sufficient to defeat malpractice claims.
 Looks at standard of care and skill practiced by a qualified member of the relevant profession.
 P has burden of proving that prof. standard and breach of that standard by expert testimony.
 Psychiatrist held to a professional standard of care of his practice (Stepakoff v. Kantar,
Mass.1985)
 Employer of x-ray attendant held to industry standard of care in using prescribed precautions
and was not held liable for negligence. (Rakowski v. Raybestos-Manhattan, NJ.1949)
 Blood Banks held to the professional industry-wide standard of care set by AABB. (Brown v.
UBS, Nev.1993) Should have focused on the adequacy of AABB’s standard.
 Physician choosing between appropriate alternative med. treatments are not liable for
malpractice if their good faith choice of one alternative results in harm. (Riggins v. Mauriello,
Del.1992)
 LOCAL OR NATIONAL STANDARD: Modified locality Rule is no longer applicable. We hold
rural medical practitioners to standard of reasonably careful, skillful, and prudent practitioners in
the same class acting under similar circumstances. Considers locality, advances in profession,
availability of facilities, specialist vs. general practitioner. (Vergara v. Doan, Ind. 1992)
DEFAULT REASONABLE CARE STANDARD STILL APPLIES!
o
o
o
o
Professional standards don’t excuse a professional from exercising reasonable care of an
ordinary person. (Powell v. Catholic Med Ctr, NH.2000)
Ophthalmologist held to the reasonable prudence standard, not just professional standard.
(Helling v. Carey, Wash 1974)
Police – Motor Vehicle Code doesn’t excuse officer’s use of reasonable care in driving. (La Marra
v. Adam, Pa.1949)
Commercial Industries are not permitted to establish their own standard of conduct b/c they
may be influence by economic incentives to save time, money, and effort. (Rossell v. VW,
Ariz.1985)
 Medical Battery (Intentional) OR Lack of Informed Consent (Negligence)?
 Medical Battery Test: (1) Patient was not aware Dr was going to perform the procedure, or (2)
Patient did not authorize performance of the procedure. (Blanchard v. Kellum, Tenn.1998)
 Lack of Informed Consent standard(Objective w/ subjective prong): whether a reasonable person
in patient’s position would have consented to the procedure if adequately informed of all significant
perils. (Ashe v. Radiation Oncology, Tenn.1999)
 Physician must tell patient of all medically reasonable alternatives. (Matties v. Mastonmonaco)
 Req’s causal connection between failure to inform and the injury to P to show liability. (Cobbs v.
Grant, Cal.1972)
 Doctrine of Informed Consent applies to noninvasive, as well as invasive procedures. (Matthies
v. Mastromonaco)
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LANDOWNERS and COMMON CARRIERS are held to a higher standard of care than the default
reasonable duty of care.
 Rationale: This higher duty is based on the landowner/company’s dominion and control over the hazards
of the property or carrier.
 Landowners have a duty of care to protect visitors from the foreseeable injurious actions of 3rd
parties. (Stagl v. Delta Airlines)
o NY has aligned common carriers’ standard with the basic negligence standard of
reasonable care, which takes into account different amounts of care as required by the
circumstances. (Bethel v. NYC Transit Authority)
LANDOWNERS II
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Reject Formalistic categories that define a landowner’s duty to an entrant in favor of a more
flexible single duty of reasonable care standard. (Basso v. Miller Ice Caves, NY.1976)
This duty should be established in view of all circumstances, including likelihood of injury to
others, seriousness of injury and burden of avoiding risk (Looks like B<PL). (Smith v. Arbaugh’s
Rest.) Makes tort law more uniform.
o Should not abolish common law status distinctions between licensee(social guest) and
invitee. (Pinnell v. Bates, Miss.2002) Elimination would impose on homeowners same
standard of duty a business owes to a customer, where there should be obvious differences.
(Jones v. Hansen)
Lisensee/Social Guest Rule– Landowner has duty to warn of known dangers, no obligation to
make home safe, No duty to inspect for unknown dangers. Guests are there at their own risk.
Invitee (Business visitors, public invitees) – Duty of reasonable inspection, duty to warn of
obvious/known defects
Reasonably expect premises have been made safe
o No longer invitee outside scope of invitation, in private portion w/ consent
Leesor has a duty to exercise reasonable care to keep driveway in repair and perform K.
(Putnam v. Stout, NY, 1976)
OPEN AND OBVIOUS RISK: Landowner has no duty to take further precautions against such
risks. Potential victims had sufficient warning of hazard. (Armstrong v. Best Buy, Ohio,2001)
o Open and obvious risk doesn’t excuse landowner from liability, when using comparative
negligence principles and D is deemed greater than P in creating the hazard. (Schindler v.
Gale’s Supermarket, Ohio,2001) But comp.neg. is concerned w/ proximate causation, not
duty establishment.
DUTY TO PROTECT: Special relationships may trigger affirmative duties to protect entrants from
harm by 3d parties.
TRESPASSERS
 Landowners have a duty of reasonable care to not subject others to an unreasonable risk of
harm. (Moody v. Manny’s Auto Repair – Motorcycle cop drove into cable)
 Landowner has duty of reasonable care not to exacerbate injury to entrapped trespassers.
(Pridgen v. Boston Housing Auth, Mass 1974)
 Landowner found to have an attractive nuisance on his land still has a duty of ordinary care.
(Bennett v. Stanley, Ohio, 2001)
LANDLORDS
 Landlord/Tenant relationship created duty to take reasonable safety measures if there’s a
foreseeable risk to tenants of criminal activity. (Smith v. Lagow, SD.2002)
 Landlord liable to the extent that they retain “control” over the premises
o Not liable for tenant’s dangerous dogs. (Stewart v. Aldrich, Me 2002)
13

University owes landowner/invitee duty to students to take reasonable measures to protect
against foreseeable hazing. (Knoll v. Board of Regents, Neb,1999)
BUSINESSES
 Business/Invitee – No duty to protect invitees from 3d party assaults.
o Except where there is an indication of “imminent probability of harm” from criminal
assaults to the invitee. (Dudas v. Glenwood Golf Club, NJ,1997)
o Business owners and landlords have a duty to protect patrons and tenants from
foreseeable criminal acts of 3d parties occurring on the premises. (Clohesy v. Food
Circus Supermarkets, NJ 1997)
HIGHEST DEGREE OF CARE



Natural Gas: Transmission and distribution of highly dangerous substances are subject to a
higher degree of care, to prevent injury and damage to the public. (Foster v. City of Keyser)
Electric Power suppliers are subject to the “very highest degree of care practicable care” to
avoid injury (Brillhart v. Edison Light & Power)
Ski Lift operators must exercise highest degree of care. (Bayer v. Crested Butte Mt. Resort)
NO DUTY TO RESCUE: In general, there is no duty to rescue/protect Strangers from perils for which
you are not legally responsible. (Yania v. Bigan, Pa.1959)
 Trespassers: No duty to aid trespasser who becomes injured on your land (Buch v. Armory
Manuf, NH.1898) No duty to aid if those in charge of the instrument of victim’s injury is not
responsible. (Union Pac. Railway v. Cappier, Kan.1903) No duty to rescue trespasser after
Airline’s duty had been discharged after landing. (Boyette v. TWA, Mo.1997)
 Physician’s license to give aid does not amount to a duty to give aid. (Hurley v. Eddingfield, Ind
1901). Tex. Statute prohibiting disclosure by health-profs, does not create a duty to disclose
threats to 3d parties or police. (Thapar v. Zezulda, Tex.1999)
Exceptions:
(Posner’s 3 categories)
1. Rescuer has assumed a duty of rescue, ie. Contractual obligation creates a duty to rescue
victim. (Folsom v. Burger King, Wash.1998) since victim has a reasonable expectation that the
rescuer has assumed the duty.
2. Custody: Custodian of victim has an implicit contractual duty, ie. inmate (Overall v. State). Duty
to exercise reasonable care in protecting 3d parties from criminal in custody. (Dudley v.
Offender Aid, Vir.1991)
o University not liable for students b/c of their adult status and the diminished custodial
role of modern universities. (Coghlan v. Beta Theta Frat)
3. Rescuer caused victim’s peril in the first place. (LS Ayers & Co v. Hicks, Ind.1942)



Invitee has a sufficient relationship with invitor to impose a duty to prevent serious aggravation of
injury (LS Ayers & Co v. Hicks, Ind.1942)
If wife of child molestor, as invitor, could foresee harm to children, there may have been a duty of
care to protect or ward children from sexual abuse. (JS v. RTH)
Master/Servant relationship creates a duty upon D to provide medical care and prevent further
injury. (Szabo v. Penn RR, NJ.1945)
14
VII. Breach of Duty
NEGLIGENCE PER SE: Doctrine says if an actor violates a pertinent safety statute, and the violation
results in injury, the fact of the violation by itself establishes actor’s negligence should be a basis for liability.
(Martin v. Herzog, CARDOZO)
 This doctrine incorporates legislated rule into tort damage suits.
 Requirements for Liability:
 Determine Intent of the Statute: Ct will look to face of the document as well as legislative record.
 Injured party must be a member of the class sought to be protected under the statute. (Snapp
v. Harrison) (Schooley v. Pinch’s Deli Market)
 Injuries were the type sought to be avoided. (Pelkey v. Brennan), (Di Ponzio v. Riordan)
 Causal Connection between negligence and injury. (Martin v. Herzog – absence of light must
cause collision) See Proximate Causation
o
Exception: Tedla excused from contributory negligence per se b/c conduct accomplished the
intent of the statute while explicitly violating it. (Tedla v. Ellman) Safety statutes should not be
construed as inflexible command under conditions when observance might cause accidents
instead of prevent them
CIRCUMSTANTIAL PROOF: Circumstantial proof and rational inference may be used by the jury in
determining if P has sustained their burden of proof in establishing breach of duty. (Thompson v. Frankus)
RES IPSA LOCQUITUR: “The thing speaks for itself” According to common experience, accidents of
that type ordinarily occur only if there is negligence by someone in D’s position.
 Evidentiary Rule that helps to prove D probably negligent, but must still show D breached duty of care.
 Life is a mystery. The law is flexible enough for use to presume someone is at fault when it is right to do
so. (Allen)
Common Law Conditions: (Ybarra v. Spangard) (Newing v. Cheatham) & Rest 2d
 Type of accident that ordinarily doesn’t happen w/o negligence, ie. plane crashes (Newing v.
Cheatham); instruments left in patient; tire falling off tractor-trailor (McDougald v. Perry)
 D in exclusive control of instrumentality that caused accident
o Rest §328D Result of “exclusive control” can be harsh. Replace with Neg is w/in the scope of
D’s duty to P. (Foster v. City of Keyser)
 Not due to P’s voluntarily action or contribution (May be a finding of contributory negligence)
o Rest 2d §328D “other responsible causes . . . are sufficiently eliminated by evidence. . .”
 Rest 3d Simplified Req’t: The accident is a type of accident that ordinarily happens b/c of the neg. of the
class of actors of which the D is the relevant member.
 2 Effects of Res Ipsa Loquitur (Rest §328D(2)):
1. Warrants inference of negligence (Sullivan v. Crabtree) Jury may choose one inference over
the other
2. Raises a presumption of negligence (Newing v. Cheatham) Jury is required to find negligence
unless D produces sufficient evidence to rebut the presumption.
 Limitations on Res Ipsa Loquitur by medical lobbies seeking to limit malpractice suits try to limit the
situations to circumstances like Foreign substance, explosion/fire from substance used in treatment, heat
or radiation burns, injury to an untreated body part, wrong patient or body part. (Nev. Rev. Statute)
15
VIII. Actual Causation
 D’s neg. act must have actually caused P’s harm/injury to establish liability for negligence (Barnes v.
Bovenmyer), (Ford v. Trident Fisheries) or neg. per se (Sowles v. Moore)
“But-For” Test : But for the tortuous act of negligence, injury would not have occurred. (3d Rest)


Combined But-For: Where multiple contributors of harm, each one of their individual behavior
led to combined source of injury (Prosser/Keeton)
Burden of Proof – By a preponderance of the evidence. Probable injury would not have
occurred w/o the D’s act.
Lost Opportunity / Loss of Chance
D’s negligence diminishes victim’s chance of a favorable outcome. Nature of the harm is increased risk,
rather than certain harm. Makes insuring medical community more difficult.
 P can get compensation if shows causation between D’s negligence and loss of chance for
recovery. Chance may be diminished but not completely lost. (Alberts v. Schultz)
 P can recover for Increased risk of future injury due to doctors’ negligence:
$ = ($ if certain harm) x (Proven probability harm will occur) (Dillon v. Evanston Hosp.)
Tricky Problems





Combined negligence led to injury(shared wall fell): Combined “But-For”. (Johnson v. Chapman)
2 sufficient possible causes of death(electrocution, fall):
Factual question of whether P can recover for suffering w/in window of time. (Dillon v. Twin States
G&E)
1 determinate human source and 1 indeterminate source:
D may still be liable for substantial role in injury despite possible superseding causes. (Kingston
v. Chicago RR)
Long latency period for development of harm makes causation difficult to show. (Allen v. US)
Where other causes of injury may be indistinguishable, no way to measure individual’s increased
risk. (Allen v. US)
Multiple Causation


Substantial Factor Test to show cause in fact, where there are 2 events sufficient to cause the
harm.
Joint liability for damages where D’s acted in concert or were engaged in a common enterprise.
(Thompson v. Johnson, 1950)
JOINT AND SEVERAL LIABILITY:
 Compensation driven outcome. Goal of compensation over finding fault.
 Shifting the burden to D may encourage adverse parties to figure out fault.
 J&S liability applies where both Ds acted negligently, though only one actually caused
injury. (Summers v. Tice, Cal.1948)
 jurisdictions are split over J&S liability with respect to comparative fault,:
 Proportionate – Under pure comparative fault regime, all parties contributing to the
same harm are liable for their proportionate fault. Comparative fault driven. (Bartlett v.
New Mex. Welding Supply), (Reichert v. Atler – bar owner responsible only for his
percentage of fault.)
 Joint & Several “Deep Pocket Rule”- Each D contributing to the same harm is liable to
the victim for the whole amt of recoverable damages. Allows victim to collect from
tortfeasor who can pay. Compensation driven.
16
Indemnity – Indemnifying someone means they don’t have to pay. The party with the greater
liability or duty justifies requiring him to pay the whole burden. (Hendrickson v. Minnesota Power &
Light Co.)

Contractual: Both parties can be held liable but based on the K, the indemnified party
has an action against the other. Should be permitted so that parties can assess and
manage their risk. (J-Lo concert)

Legal: Vicarious liability of the employer may indemnify the employee from paying for
negligence. Makes sense considering employers’ absorbing the cost of doing business.
(Hillman v. Wallin)

Comparative Indemnity System – Permits right of partial indemnity where liability
among multiple tortfeasors may be apportioned based on comparative negligence.
(American Motorcycle Ass’n v. Sup. Ct, Cal.1978)
Superseding Cause
Not Foreseeable cause. Is an intervening causes sufficient to prevent D’s negligence from being held as the
proximate cause.
Test – D is relieved from liability if neither the intervening cause nor the harm was foreseeable.

Subsequent negligence of an intervening party excuses liability of the D. (McLaughlin v. Mine
Safety Appliances Co. – heat blocks caused burns)
IX. Proximate Causation
 Proximate or legal cause is concerned with conceptual connections between the D’s breach of duty and injury
to the P. (Palsgraf v. Long Island Railway, CARDOZO).
Proximate Cause as an element for negligence liability cannot be so far removed from the injury that
it runs contrary to policy considerations and fairness.
 It may also be described as a “causal linkage” which would reasonably happen again in the future if D
repeated the same wrong. (Zuchowicz v. US, 2d.Cir.1998)
 Advantages:
 Avoid limitless liability
 When using foreseeability, easier in application to use similar rule for proximate cause as for
determining negligence to begin with.
 Unforeseeability disables rational risk taking and
 Makes insuring easier
o
(Criticized b/c may discourage deterrence of negligent conduct in neg. per se cases where no liability
was found b/c of lack of prox. cause.)
o
Rest 2d
Sec 431. The actors negligent conduct is a “legal cause” of harm if:
1. his conduct is a substantial factor in bringing about the harm and
2. there is no rule of law relieving the actor from liability because of the manner in which his negligence
has resulted in the harm.
“Rest 2d refers to a “legal cause” not a “proximate cause”, providing for a “substantial factor” test which is
difficult for the jury to implement on difficult cases.”
17
Rest 3d
Tentative Draft Chapter 6
Scope of liability jettisons the traditional terminology of “proximate cause” to focus precisely on whether an
action unreasonably risked harm that befell the P.
“Rest 3d throws out the concept of prox. causation to look instead at weather D’s act unreasonably risked
harm which befell P. Although this analysis is consistent with how we talk about breach of duty of care, based
on reasonable person standard, it has not been implemented in most jurisdictions.”
Foreseeability
Requirement of proximate cause that the consequences of D’s negligence must have been at least a
reasonably foreseeable at the time D acted. (Widlowski v. Durkee Foods, Ill, 1990 – nurses finger bit off by
delirious D)
 No liability unless D’s wrong increases the chances of such harm occurring in gen’l. (Berry v.
Sugar Notch Borough, Pa, 1899)

(Palsgraf, 1928) No prox. causation if not reasonably foreseeability of P to D. “There was
nothing in the situation to suggest to the most cautious mind that the parcel wrapped in
newspaper would spread wreckage through the station.”
 Cannot be simply “Proof of negligence in the air, so to speak, will not do.” (Pollack, Torts, 11th
ed.)
 Foreseeability refers to gen’lized risks of the type of injuries that occurred, not predictability of
sequence of events. (Stewart v. Jefferson Plywood Co, Or. 1970)
 Foreseeability to show negligence per se requires proximate causation of the specific injury
contemplated in the statute. (Larrimore v. Am. Nat’l Ins. Co, Oka 1939 – exploding rat poison,
Gorris v. Scott, 1874 – sheep swept overboard)
o
(Palsgraf Dissent): The proximate cause must be, at the least, something w/o which the
event would not happen. “But for the D’s negligence, injury wouldn’t have occurred.”
Consequences of an unreasonable risk are not confined to those who might probably be hurt.
all those infact injured may complain.
o Polemis Test
KB, 1921 - Conduct was a direct cause of the injury. D who is guilty of neg. is responsible
for all consequences, regardless of foreseeability.
o

(Dellwo v. Pearson, Minn.1961)Foreseeability is not the test for proximate cause.
Anticipation of the harm is not decisive in determining the proximate cause. “Consequences
following in unbroken sequence, without intervening cause, from the original negligent act,
are natural and proximate.”
Criticism in Wagonmound (NSW, 1961): Foreseeability becomes the effective test. Critical of
Polemis for using “liability for negligence” without context. Reinstated Blyth v. Birmingham (Exch,
1856)
Eggshell Skull Rule
Where P is hypersensitive to injury that normally would not inflict major harm. Proximate Cause doctrine is an
exception to the reasonable person standard used in intentional tort and negligence law of duty and breach.
 Rationale – You can forsee that others may have eggshell skulls. Compensation of the victim, where
one of two innocents must bear the cost.

“A tortfeasor takes his victim as he finds him” Still liable for negligence against eggshell skull P.
(Smith v. Leech Brain & Co., QB, 1962)
18
DEFENSES TO NEGLIGENCE
 Harshness of Contributory Neg. and Last Clear Chance create incentives on both sides to be more
careful or add more training in order to avoid accidents.
 Large role in Ins. Settlements and the way Ins. Cos handle claims.
(DISCOVERED PERIL RULE): If the peril has been discovered by P, the D is not liable.
ASSUMPTION OF RISK: Completely bars P’s recovery since she assumed risk of the activity,
even though she wasn’t neg.
 Affirmative defense based on K principles whereby Victim voluntarily alters/suspends tort
duties of care owed to her.
 Assumption of risk must be Voluntary. (Marshall v. Rane)




Trespasser have assumed the risk of coming on your land. Would impose great burden
on landowner to keep land safe to anyone.
Strangers assume the risk of living their own lives. No duty to strangers.
Work Place Neg: Employers classically have no duty to employees b/c they have
assumed the risk of working there. (Lamson v. Amer. Ax. 1900)
Firefighter’s Rule: Public Safety Officers(Licensee Duty) cannot recover for negligence
they are called to handle in the line of duty; tax payers analogous to employers who pay
them to deal w/ the inherent risks in their responses to hazards. Rationale: Allowing
recovery would in a sense by making members of public double pay for costs already
distributed.
 Also want to encourage people to call 911 and reduce accidents.
o


Exception to Firefighter’s Rule for unforeseeable hazards that don’t have to do
with negligence that called them there
Social Guest/Licensee assumes the risk of hanging out with you; only duty to warn of
non-obvious hazards.
Exculpatory Ks – Medical Facilities
Can function to reduce liability
o Patients’ release of liability may violate statute and act contrary to public policy.
(Tunkl v. UC)
o Imbalance in bargaining power btw Patient/Hosp
o Want to ensure standards btw charitable and private Hosps.
o Waiver can be seen as an Adhesion K, w/o consideration.
o Patient may have refused blood transfusion but didn’t assume the risk of
negligent surgery. (Shorter v. Drury)
CONTRIBUTORY NEGLIGENCE: Failure on part of the claimant to use reasonable care,
while negligence is a breach of duty. (Davies v. Swan Motor, 1949)
 Looks at Victim’s Conduct – P’s have a reasonable duty of care to themselves. (Greycas v.
Proud)
 Pre-Comparative Fault era, Contrib would bar recovery completely
 Favored by insurance companies


Contrib. of pilot bars any recovery for negligence of controllers. (Rawls v. US, 4th Cir,
1985)
Worker Contrib. even where D was negligent per se. (Krall v. Royal Inns, Ala, 1973)
o
Abolished defense of Contrib in vehicle-ped cases. (La. 1978)
19
o
Landowners who allow their grass to grow in a natural state and don’t plow a fire guard
are not contributorily neg. (Quinah v. Stearns, Tex. 1918)
o
Negligence w/o Cause: Contrib. does NOT apply when failure to exercise due care did
not cause the accident. (Spier v. Barker)
LAST CLEAR CHANCE RULE – If D had the last clear chance to avoid the accident, Contrib.
defense cannot be used.
 Softens result of Contrib
 Classic Jay-Walking: Contrib. of injured Ped bars him from recovery, unless D had the
last clear chance to avoid injury. (Meyn v. Dulaney-Miller Auto, W.Va, 1937)
 Suicidal train jumper + Negligent Conductor w/ Last Clear Chance. Conductor’s
negligence in unreasonably avoiding accident is not excused by suicidal intention of P.
(Wash. MTA v. Johnson)
COMPARATIVE FAULT: P’s contrib. in a comparative fault regime is not a bar against
recovery, but may reduce P’s recoverable damages in proportion to his degree of fault.
 Damages reduced by P’s percentage of fault.
 Look to anything relevant to causative negligence and contrib. neg.
 Deterrence provides incentives for both sides to be safer.
 More Fairness and just results where both at fault.
 Less appeal to Insurance Co’s who love Contrib.
o
o
Disadvantage: More expensive and lengthy trials. Jury behavior often lands on 50-50
awards where they find comparative fault.
Seatbelt Defense has been more successful in comp. fault, reducing P’s damages for
not buckling up.

“Pure” Comparative Neg should replace “All or nothing” rule of Contrib. to make
liability for damages is directly proportional to fault of each party. (Li v. Yellow Cab,
1975), (Scott v. Rizzo, NM.1981)
 “Last Clear Chance” doctrine and “Assumption of Risk” defense should be
subsumed under Comparative Neg. analysis. (Li v. Yellow Cab)

“Greater Fault Bar – 50% Rule”
If P is just as negligent or more negligent(depending on jurisdiction) than the D, P’s
neg. bars recover.
 The tendency for juries to split 50-50 influences them to err on the P’s side so as
not to have the harsh effect of barring P’s recovery.
 Problem: Where multiple Ds, P can only claim recovery against those more at
fault than P.
o
Alabama rejects Comparative Fault in favor of Contributory Negligence. (Williams v.
Delta Machinery, 1993)
Comparing Fault



Comparative Fault Analysis should not apply to intentional torts, (Morgan v. Johnson);
though it may reduce damages, (Blazovic)
Juries should consider disparity of risk, where one party poses greater knowledge of
extraordinary danger(ie high voltage) (Ferguson v. NE States Power)
Should consider extent of patient’s diminished mental capacity to care for own safety.
(Champagne v. US)
20
X. Compensation
NIEH - Pure Emotional Harm



Traditional Zone of Danger Rule – Recovery for pure emotional harm justified by physical presence
close enough to create fear of harm.
Dillon v. Legg reformulates this Rule in favor of a 3-factor analysis to determine if emotional harm
was reasonably foreseeable enough to create a duty in D justifying recovery.
Factors include: (1) physically close to scene, (2) direct emotional impact from sensory &
contemporaneous observance, (3) close relationship to victim
Mother was a foreseeable victim of emotional distress.
Recover for emotional distress from malpractice (mistaken in vitro fertilization). Both families should
be able to recover. P should be able to recover for emotional damage even in absence of physical
burden. (Perry-Rogers v. Obasaju). *Maybe recovery for lack of informed consent to that particular
medical procedure. *Child may even suffer emotionally and in health from separation from its natural
mother.
 Advantages:
 When limited to family members, costs are reasonable & predictable (Dillon v. Leg)
 Some emotional injury is severe, outrageous, and abusive with doctor/patient relationship. (PerryRogers v. Obasaju)
 Relationship between children and their deceased parents. (Guth v. Freeland)
 Disadvantages: Expensive for Courts, administrative problems
Pure Economic Damages
(Robbins Dry Dock) Contract between ship owner and Robbins Dry Dock to repair the ship
for $5,000 by 15th. Owner also had a K to charter out the boat for $100,000 profit on the 20th. The
Charter was set sail with passengers on the 21st. Due to negligence, Dry Dock delays till 30th. Means
owner breaches K with Charterer and Charterer breaches with passengers.
There is no tort liability for purely economic damages. People engaged in Ks have the
ability to protect themselves from the foreseeable consequences of breach. In a typical K case you
going to consider whether damages are general or special based upon the foreseeability of damages.
Contracting parties have the opportunity to consider the consequences of breach, whereas tort
parties are typically strangers who don’t work these things out in advance.
Hypos:






Viciously, intentionally run over someone’s leg.
Liability for battery, recovery for physical and collateral emotional harm
Negligently runs over someone’s leg.
Liability for negligence, recovery for physical and collateral emotional harm
Assault w/o contact causes someone to stumble back and break their leg
Liability for assault
P reads about story of Crematorium intentionally replacing remains with ashes of garbage. Causes P to
suffer emotional harm.
Not liable for emotional harm because of lack of presence, distance in relationship. Would lead to
unlimited liability.
Couple hears about Perry Rogers case and experience severe physical illnesses, physical and emotional
harm.
There is no close relationship between injured party and no
presence, thought they might be in the zone of danger.
Black couple reads about White mother giving birth to a black baby. They take measures to see if in fact
their embryo ended up as that baby.
Liability for severe emotional damage as a result of the mistake.
21
DAMAGES
 Compensatory damages - Goal in tort law is reparation for harm wrongfully inflicted upon
victims, paid by those who have wronged him.
 Deterrence – Role of tort law in discouraging dangerous behavior, in effect placing a price on the
violation of another’s physical integrity or damage to their property.




“D must accept the present P as he finds him” (Christopher v. U.S.,Dist.Ct.Pa,1965)
Consider both pre-litigation values and future
o Lost Wages/Future Earnings: Ct. considers physical limitations imposed by injury, life
expectancy, employment expectancy, potential salary. Practical limit. Ct. looks at his
position and doesn’t expect him to work.
o Med. Exp: Ct. considers life expectancy, past and future exps ( – disability payments by
gov’t in Fed. Tort Claims Act action)
o Pain & Suffering: past, present, and future physical and mental distress, permanent
injury, i.e. use of legs, depression, loss of reproductive capability, social embarrassment.
Principle of Compensatory damages is to place injured P in the position that they would have
been in had no wrong occurred. (Sherlock v. Stillwater Clinic)
Rely on jury to determine $ amt in compensation. (Jones v. Fisher)
Offset Rule – applied in Comparative Fault where damages recoverable by both sides cancel
each other out. Diminishes injured parties’ actual recovery and provides insurance companies w/
windfall at the exp. of injured premium payers. (Jess v. Herrmann)
Non-Pecuniary Loss
Damages may include compensation for “pain & suffering” – Deters negligence, accidents, pain &
suffering, and higher social costs. (Kawasny v. U.S., 7th Cir.1987, Posner)

Comparability Analysis: In measuring pain & suffering, juries should consider award
damages in comparable cases. Avoids arbitrary variance in awards.
 Advantages: promotes equal justice under the law, that like cases will be treated alike;
easier to predict verdicts and settle cases; reduces transaction costs to tort system;
Predictability of damages: speeds up payment of damages to Ps, reduces cost of
insuring liability, may promote innovation. (Jutzi-Johnson v. U.S., 7th cir, 2001, Posner)
o
o

Disadvantages: effectively “caps” jury award regardless of evidence; discourages
discretion of juries and deference to the 7th Amd. right to jury trial; restricts juries in their
charge to fully compensate the P.
It is inherently flawed to look at comparable damage awards because all cases are
unique. Judge can make Additur/Remittitur (Ritter v. Stanton, Ind.Ap.2001)
Counsel cannot suggest specific sums for the calculation of damages for pain and suffering.
(Friedman v. C&S Car Service, NJ. 1987)
Uncertain Future Harm
If we try to discount damages by the probability that future injury will occur  no one is properly
compensated.
Discounting of damages for future uncertain pain and suffering is not permitted. (Friedman v.
C&S Car Service, NJ. 1987)
 P can recover for all probable future consequences once some effect appears. (Jackson v.
Johns-Manvelle – asbestosis) Consistent with “one-disease” rule, all claims arising from
single tort action must be asserted together.
22


“Two-disease” rule: In asbestosis cases, allowing an action for nonmalignant asbestosis, and
separate action for cancer. (Marinari v. Asbestos Corp., Pa.1992 – majority of states)
Promotes fair and just compensation, based on factual, non-speculative evidence.
Use of statistics and probabilities of future harm should be allowed in calculation of
compensatory damages. (DePass v. U.S., 7th Cir.1983, Posner)
Periodic Award of Damages
Possible soln to uncertain future damages. Permits adjudicating liability prudently, while waiting
to see what harm develops.

Damages attributable to lost earning capacity due to injury must be awarded during victim’s
lifetime utilizing a preinjury life expectancy (Jane Doe v. State of NY, 1993 – Nurse
contracted HIV from unrestrained inmate)
Discounting Future Harm


Traditionally Cts don’t take inflation into acct.
Recently, the have been taking it into acct: Real interest rate approach already measures it;
More modern approach: Discount damage to PV; and separately figure out inflation rate

Tax: IRS doesn’t tax tort awards. For state and local taxes, it’s up to them. Typically juries
are not instructed about this.
Juries should be instructed that IRS exempts compensatory damage awards, but not clear to
what extent this applies beyond Fed. Employers Liability Act (Norfolk & Western Railway v.
Liepelt)
o
Collateral Source Rule: Insured victims can get both their insurance compensation and
damage award.
Effect of Contributory/Comparative Neg:


Jury may reduce damages if P did not act reasonably(didn’t wear seatbelt) to mitigate
damages prior to accident – (B<PL). (Spier v. Barker)
Comparative Fault may reduce P’s recovery of compensatory damages against intentional
tortfeasors. However, apportionment of fault does not eliminate punitive aspects of recovery.
(Blazovic v. Andrich, NJ.1991)
WRONGFUL DEATH
 Action brought by person related to victim who has suffered thru victim’s wrongful death.
Types of Loss
Survival Statutes: allows estate of deceased to recover for “pre-death damages” which
would have been available to victim had she remained alive, even injuries unrelated to death.
(Otani v. Broudy, Wash.2002)
 Decedent’s pain and suffering is recoverable if there was time consciousness and
experience of it. (Otani)

Alive, dead, in a coma or injured, loss of enjoyment of life(hedonic damages) is
recoverable where individual is unable to function in a way which allows him to enjoy his life.
Use minimum wage in a solid formula (Choctaw Maid Farms, Inc. v. Hailey, Miss.2002)
o Loss of enjoyment of life is not recoverable b/c there would be no claim had
decedent lived. (Otani) Loss of experience
23

Comatose Patient who dies– loss of enjoyment of life survival action may be brought for
damages for “total disability and impairment inflicted by injury” (Eyoma v. Falco,
NJ.App,1991) Loss of the opportunity of experience
o
Punitive Damages are not recoverable under survival statutes. (Mattyasovszky v. West
Towns Bus, Ill,1975)
o Criticism: Cheaper to kill your victim than to maim him. Doesn’t deter others from willful
and wanton misconduct; inconsistent with the gen’l body of tort law.
Death Statutes: provides for damages for pecuniary benefits for near and dependant
relatives.
 Loss of “housewife” services may be included in compensation for pecuniary damages
resulting from increase expenditures. (DeLong v. Erie, NY.1983)
 Minor’s wrongful death action may include loss of companionship and society (assistance,
advice, and protection) of child as pecuniary loss. (Anderson v. Lale, 1974)
 Parents can claim for wrongful death due to malpractice, however $10,000,000 race horse
verdict is unreasonable and outrageous! Remitted to $3,000,000, capped based on
“unreasonable and outrageous, manifestly showing jury passion, partiality, prejudice, or
corruption.” (Roberts v. Stevens Clinic Hosp.,W.Va.1986)
Who May Recover?




Spouse may sue for loss of “consortium” (Rodreguez v. Bethlehem Steel Corp. Cal.1974)
broad to cover love, companionship, society, sexual relations, and household services
Parents of Adult Children may recover under WDA based on injury that deprived them of
society of that child. (Clymer v. Webster, Vt.1991)
Parents of Adult Children who suffered permanent brain damage (NOT DEAD) from injury
may recover for loss of consortium. (Frank v. Sup.Ct., Ariz,1986)
Parents of children conceived following a failed sterilization procedure can recover for childrearing costs. (Burke v. Rivo, Mass.1990) Fairness to D.
o Intolerable to determine whether child is a loss or benefit, as if personal property.
(O’connor)
Who Cannot Recover:
o
o
Child-Parent-: Gen’lly no cause of action for loss of parental consortium.(Borer v. AmAir,
Cal,1977)
o Inadequacy of monetary compensation – but we already value loss of children, danger of
imposing extended and disproportionate liability, worried jury decision would devastate
AmAir. Want to leave it up to policy makers.
o Exception: Statutory basis for children’s loss of parent consortium claim (Hibpshman v.
Prudhoe Bay Supply, Ala.1987) preference for joining children’s claim w/ surviving
parent’s claim.
Unmarried couples may not recover under Wrongful Death Act for death of their partners,
despite 7yrs living together. (Cassano v. Durham, NJ,1981)
24
XI. Strict Liability
 Analysis is not based on fault of party
 Some causal link to the injury
 Strict liability creates incentive for actor to prevent accidents by relocating, changing, substituting, or reducing the
activity responsible for the accident.
VICARIOUS LIABILITY
 Liability for someone else’s tortuous conduct.
 Doctrine presupposes underlying tort liability.
 Vicariously liable enterprise takes on the financial responsibility of the tortuous actor(Servent), premised
on the idea that the larger enterprise(Master) somehow precipitated the conduct.
Vertical: Master/Servant/Independent Contractors
 (Rest 2d, Agency §2, p15) Master/Servant/Independent Contractors
Master: principal employing an agent to perform service in his affairs and who controls or has
right to control the physical conduct of the other in performance of the service.
Servant: agent employed by a master to perform service, whose physical conduct in performance
of the service is controlled by the master.
Ind. Contractor: person who contracts with another to do something but who is not controlled by
the other nor subject to other’s right to control with respect to physical conduct in performance of
undertaking. May or may not be an agent.
Employer/Employee (Respondeat Superior)

Gen’l Rule: Master is vicariously liable for actions of servants according to Rest §219. Acts
of employee “acting w/in the scope of employment” are imputed to employer.
o “Acting within the scope of employment” may include factual question of degrees of
deviation from prescribed directions of employer. (Kohlman v. Hyland, ND 1926)
o Determining what is in the scope of employment: Employer should foresee that employee
would take certain deviations/frolicks while still acting within the scope of employment.
(Ira Bushey v. US)
o Employers are vicariously liable for the conduct of employees acting under color of
authority.
o Public Employee: Police was acting w/in scope of employment b/c risk was
sufficiently foreseeable due to officer’s inherent authority. (Mary M. v. City of LA –
rape by PD)
o Tax payers have to pay for it since we benefit from their service. After huge payouts
from tax payers, places pressures back on PD to change conduct.
 Private Employee: Not foreseeable that acts of x-ray technician would be w/in the
scope of employment. Victim has the choice to go somewhere else. (Lisa M v. Henry
Mayo Hosp.)
o Counters idea of burden shifting to one who controls conduct in respondeat
superior. (Make a TJ Hooper arg about customary duty not being sufficient
reasonable duty of care. We need more safeguards to protect victims in these
private situations where people act under color of authority)

“Respondeat Superior” doctrine means employer is liable regardless of fault. Since
master controls the risk, controls the conduct of the employee, and can better spread the
cost(insurance, deep pockets)
o Based on strict liability notion encouraging firms to change activities as a way of reducing
accidents. (Konradi v. U.S (Postal Service), 1990)
25
o

Enterprise ought to internalize the cost of injury since they are better able to insure and
distribute the costs to the beneficiaries – the business and consumers. (Fruit v.
Schreiner)
Employer liable for employee’s unauthorized negligent conduct, even if contrary to express
instructions. (Wood v. Central Ark Milk Producers, Ark, 1961)
Master/Independent Contractor

Independent Contractor Immunity: Masters are not liable for the torts of their Independent
Contractors, w/ exceptions. (Becker)
o Depends on whether principal has the “right to control” conduct of the agent. Principle
does not supervise the details of the IC’s work and is not in as good a position to prevent
negligent performance. (Anderson v. Marathon Petroleum Co, 7th Cir, 1986 POSNER)
Majestic Exceptions:
o Employer retains control over aspects of activity
o Contractor employed is incompetent
o Activity is inherently dangerous
(Majestic v. Toti)
Exceptions:
o Negligence of employer in selecting, instructing, or supervising the contractor.
Becker Criteria:
1) (Distributive Justice)Spread costs of insurance/liability to end users;
2) allocation of liability to those in a position to control factors leading to accidents;
3) Beneficiaries of activity should bear costs (Becker v. IP, 3rd Cir,1977)
o Disfavors small businesses that are not able to afford high insurance, stifling
competition. (Robinson v. Jiffy Limo) But shouldn’t we force companies to
internalize risk in their cost structure for the sake of safety?
Do these relate to Calabrese’s objectives of tort law to reduce accidents? Creates
economic incentives to mitigate loss by taking steps to make accidents less likely to
occur. People best able to bear loss and distribute costs doesn’t nec. mean you want
to bear or pass on loss – too expensive.
o Non-delegable duties of the employer
Duty that principle had was so core to safety that the duty could not be passed
on to a contractor.
o Peculiarly or Inherently Dangerous work.
Peculiar Risk Exception establishes liability for an employer who hires an IC to
do work that employer knows is likely to create a peculiar risk of physical harm
absent special precautions. Rationale: Employer is in the best position to
identify, minimize, and administer the risks involved in the contractor’s activities.
(Scott Fetzer Co. v. Read, Tex.1997)
Inherently Dangerous Work – that which is dangerous no matter how skillfully
done; it must result in probable injury to 3d persons or the public. (Goolsby v.
Kenney, Tex.1976)
Best Briber Rule: (Coase Theorem)
Burden falls on party in best position to pay to avoid/mitigate the risk.
Horizontal:
Partnerships

One party is responsible for the negligence of the business partner.
o
Spouses are not vicariously liable for each other’s torts
26
WILD BEASTS
 Wild Animals – Strict liability (Rest 507)
 Abnormally Dangerous Domesticated Animals – Strict liability (Rest 509)





“Act at your Peril” – Without regard to fault, one who acts and causes harm should pay for
harm done. (Case of the Thorns)
Contributory negligence is not a defense in a strict liability action, b/c we’re not comparing
the negligence/fault of the parties. Strict liability cases find liability without fault. (Marshall v.
Rane – couldn’t avoid Hog)
Voluntary Assumption of Risk is a valid defense to strict liability. (Marshall v. Rane)
In Comparative negligence regime victim’s responsibility for own injury reduced recovery
proportionate to fault. (Andrade v. Shiers, 1990 – Mother Cow)
Strict liability for harm from domesticated cattle if they trespass. (Wormald v. Cole, 1954)
ULTRAHAZARDOUS ACTIVITY
Separate the categories out in strict liability.
 Gen’l Rule: Absolute liability for ultrahazardous or abnormally dangerous activities.
(Splendorio v. Bilray Demo, RI 1996)
Ryland v. Fletcher cases
 Exemplar of strict liability:
o Liability for non natural uses of your land where escaping perils cause damage to others.
o Hazardous activities form the basis of strict liability.



Strict liability for trespass(damage) to property against D who brings dangerous article on
P’s land. (Ekstrom v. Deagon, 1946 - truck destroys garage)
Strict liability for escaping dangerous substances stored on property. (Brennan Construction
v. Cumberland, 1907 – escaping asphault)
Strict liability for falling snow peril from constructed roof. (Shipley v. 50 Assoc, 1870)
Limitations on Rylands
o
o
Rylands Rule should only be used for “unwarrantable and extremely dangerous uses of
property, fraught with peril to others.” (Ainsworth v. Lakin, 1902) Policy basis for developmt.
American cases in Losee v. Buchanan, Brown v. Collins have rejected English tradition of
strict liability in favor modern advances and mechanization. “No one can be made liable
for injury. . .w/o some fault or neg. on his part. (Losee). Also promotes corporate enterprise
and industrial policy(Robb v. Carnegie Bros, 1891).
2d Rest §519 Gen’l Principle
(1) person who carries on ultrahazardous activity is liable for foreseeable harm resulting from
miscarriage of the activity,
(2) Limited to kind of harm results from that which makes the activity ultrahazardous, despite
utmost care to prevent harm.
2d Rest §520 Abnormally Dangerous Activities
Factors: (a) High degree of risk, (b) likelihood of great harm, (c) inadequacy of reasonable
care to eliminate risk, (d) common usage, (e) inappropriateness of activity where carried out,
(e) value to the community.
27
Blasting/Gas/Fireworks


Strict liability for storage of explosives b/c ultrahazardous activity. (Bradford Glycerine, Ohio)
One who stores explosives does so at his own peril. (Exner)
o Statutory neg. doesn’t apply if victim not w/in class of those meant to benefit from statute
o


Shipper of Nitro not liable since D had no reason to know of its dangerous
character. Injury is not sufficient to hold liability in an unavoidable accident, whilst
engaged in lawful business. (Nitro-glycerine Case, 1972)
Strict liability should apply to transport of gasoline in great quantities as freight, since it is an
abnormally dangerous activity. (Siegler v. Kuhlman, Wash.1972)
Strict liability for organizers of fireworks display b/c “abnormally dangerous activity”
according to Rest 520 factors. (Klein v. Pyrodyne, Wash.1991)
o Display of fireworks is not ultrahazarous according to Rest 520 factors. (Cadena,
Ill.1998)
Hypo: Baseball game shouldn’t apply strict liability. Just b/c there is a potential for injury
doesn’t mean it’s abnormally dangerous.
o
o
No strict liability for leaking toxic acrylonitrile from train compartment b/c incentives
to reduce accidents would be ineffective, while neg. analysis is sufficient to show
liability. (Indian Harbor RR v. Amer. Cynamid, 1990)
Strict Liability appropriate where accident can be avoided or its effects mitigated
by shifting the activity to a different location or reducing scale of activity to minimize
accidents. (Bethlehem Steel v. EPA)
DEFENSES & LIMITS
 Strict Liability is not concerned w/ fault, so it shouldn’t matter what others are doing. The
exception is made where the P knowingly and voluntarily accepted the risk.
Rest 2d § 523: Assumption of Risk bars recovery
Rest 2d § 524: Contrib. Neg is not a defense to strict liability, (2) unless P knowingly and
unreasonably subjected himself to risk of harm.


Assumption of Risk req’s P have knowledge of risks and voluntarily accept them.
(McLane v. NW Nat’l Gas, Or, 1970 – D injured working on nat’l gas unit, abnormally
dangerous activity).
Assumption of Risk by handling a wild animal(strict liability) is a defense if voluntary and
unreasonable. (Irvine v. Rare Feline Breeding Ctr, Ind.1997)
Rest 3d 25: Comparative Responsibility In abnormally dangerous activity cases, P’s share of
responsibility (comparative fault) reduces recovery, consistent with a comparative fault regime. No
longer recognizes Assumption of Risk as a complete bar, allowing P’s to secure partial recovery.
 Reduces the harsh outcomes of D’s strict liability w/o contrib. defense vs. assumption of risk
(baring P from recovery).

Intervening cause that is foreseeable is NOT a defense to damage from stored explosives,
which imposes absolute liability. Foreseeability suggests the cause was w/in the scope of
D’s negligence. D’s have created the unusual risk to others for the benefit of their own
enterprise.
28
PRODUCTS LIABILITY
 Applies to any consumer good.
Privity: Has to be direct K’l relationship between manufacturer and victim to recover for
injury.(Losee v. Clute)
 Sale of goods is about disposing and alienating the good to another party. So why should
anyone else in the world have a claim against you besides the one in privity. Pro-business.
 Appropriate in a time where maker and buyer met face to face and buyer had an opportunity
to inspect the product firsthand.

The obligation of the manufacturer arises solely out of his K with the direct purchaser;
public have nothing to do with it. (Thomas v. Winchester)
o Exception with poison, in the case where injury would be a natural and necessary
consequence of the builder’s neg. (Winchester)
o In putting food in the market in dangerous condition, D had a duty to protect the
public from health consequences. Neg. was proximate cause of injury. (Ward v.
Morehead)
o Extends liability found in Windchester to products which in their normal operation
are implements of destruction. Manufacturer has a duty to make products careful, if
it has knowledge of probable danger and knowledge that danger will be shared
by others than the buyer. (MacPherson v. Buick, 1916)
 Argument against Privity
o As mass marketing and the use of intermediaries btw manufacturer and consumer
became more ubiquitous, the elimination of privity benefited society’s interests by shifting
the burden upon those in a position to control the danger posed by defective goods or
distribute the losses.
o Manufacturer is in the best position to inspect. In an advertisement culture, the attraction
of consumers by superficial qualities discourages consumer attention to safety or
inspection.
Implied Warranty: Unless disclaimed, there is an implied warranty for product safety which
results in strict liability for injury caused by product failure.
 There is limit on the damages recoverable under warranty theory. Have to go with
negligence to get $
 We might see the move from simple face-to-face transaction to complex mass marketing
transactions as a trade-off for the manufacturers. Since they profit from the extended market
reach available thru intermediary distributors, they should expect the product to trade hands
and still be held liable for product warranty regardless of privity.
 Developed to protect ordinary consumer who cannot be expected to have knowledge or
opportunity to make adequate inspection of mechanical instruments. (Henningsen v.
Bloomfield Motors)
UCC 2-313: Compelled to pay damages for express warranties
UCC 2-314: Implied Warranty of Merchantability applies to goods sold by merchant meeting
conditions: a) no objection by K description, b) fair avg quality if fungible goods, c) goods are fit for
the ordinary purposes for which such goods are used d) consistent kind, quality, qty, e)
adequately contained, packaged, lebeled, f) conform to facts on label. (MacPherson)
 In modern commercial practice, the use of form Ks and disclaimers of implied
warranties by companies w/ strong bargaining power do not allow consumers to negotiate
and should be void as inimical to the public good. (Henningsen)
UCC 2-318: Third Party Beneficiaries of Warranties Express or Implied: (a) Family, household
member, or guest (b) any person reasonably expected to use, consume or be affected by goods.
29

Implied warranty of merchantability extends to purchaser, family members, and other
persons occupying or using it with consent. Manufacturer should reasonably contemplate
that 3d parties would use and might become injured. (Henningsen)
Strict Liability
 Policy Reasons: 1) Seller can best distribute costs and risks; 2) Seller creates risk while
consumer has the right to rely upon product safety; 3) Manufacturer can best control the
risk created since they can initiate inspection and quality control.
Rest 2d § 402(A): Special Liability of Seller(Retailers, distributors, parts providers)
(1) One who sells any product in a defective condition unreasonably dangerous to
user(doesn’t need privity) or consumer or property is subject to liability if:
(a) seller engaged in selling product,
(b) untampered with version of product;
(2) Rule applies w/o seller’s neg and w/o privity.
What qualifies as a product? Blood? Food ok
Manufacturing Defects – something went wrong in the process. The fact that product varies
from design is enough to show products liability.
 Risk of injury can be insured by manufacturer and distributed as a cost of business. (Escola
v. Coca Cola)
Hypo: Cookie with a metal wire
Use § 402(A) analysis. Think of test as manufacturing standard of manufacturer and safety
expectation of consumer.
Design Defects – Something about the very design such that everyone of the products is
dangerous to users.
 Strict liability applies to manufacturer regardless of foreseeability of risk of harm inherent in
defective product. (Green v. S&N)
Hypo: Cookie designed w/ plastic wrapper causes choking.
Consumer Expectation Test – does product design meet safety expectation of
consumer?
 Product may be deemed defective and unreasonably dangerous based on
consumer expectation test. (Green v. S&N, 2001)
 P not req’d to show an alternative, reasonably safe design to show defective design.
(Couch v. Mine Safety)
 Manufacturer is not obliged to market only the safest design possible. (Linegar v.
Armour of America) Consumer has chosen to buy the less safe alternative b/c of
cost, design, comfort, utility besides safety.
o Some exceptions may be regulated by safety legislation, i.e. food, pharma, cars
o Expectation Test is not the exclusive test. (Berker)
o Problem: May be too weak, b/c consumers may have low expectations of products,
leading to deprival of valid recoverable damages.
Risk/Utility Test – Is the risk due to design outweighed by the utility of that design?
 Jury may weigh gravity of danger, likelihood danger would occur, mechanical
feasibility of alternative design, cost of improved design, consequences of
alternative design. (Berker v. Lull Engineering)
o Problem: Looks a lot like Neg. balancing B<PL. Where’s the “strictness” ? But this is
what the Rest 3d adopts. Rationale: Every single instance of that product is
defective, leading to mass liability and class actions. To avoid wiping out companies,
30
it’s better to weaken strict liability by having to show foreseeable risk of harm and
feasible alternative.
Warning Defects – Insufficient warning came with the product that is unavoidably
unsafe, i.e. medication.
 An otherwise defective product may be made safe for consumer by use of adequate
warnings or instructions. (Green v. S&N)
Rest 3d: (p1001)Product Defect - “Stictness” and “Duality”(two tests) are not elements of 3d Rest’s
definition of Strict Liability.
(a) Manufacturing Defect: Analysis doesn’t look at fault
(b) Defective Design: Apply Risk/Utility balancing, weighing foreseeable risk and
reasonable alternative designs to determine reasonableness. Liability based on what could
have been known.
(c) Inadequate Instruction or Warning: Liability when foreseeable risks of harm could have
been reduced or avoided by reasonable instructions or warnings, according to Risk/Utility
balancing.
o
o
Problem: Criticized for going too far beyond what States have adopted to be a Rest.
Discourages manufacturers from making products as safe as they could be
Most prominent tort suits: Asbestos, IUD defects, vaccination litigation(Swine flu, Polio), Breast
implants, DES, cigarettes, tampons,
Internalizing Externalities – Companies price their product based on direct costs. Other
externalities/indirect costs, such as risks of harm public, should also be internalized as a cost of doing
business. If you don’t internalize costs, under-priced product may be over consumed increasing harm
from those externalities. Someone else is going to be paying for the costs. (Doe v. Miles Labs)
Retailers and suppliers should be liable for products liability since they are in a better bargaining
position to get manufacturer to bear financial responsibility. (Brooks v. Beech Aircraft)
Component Parts supplier is only liable when the manufacturer has not made a substantial change
to the part in the stream of production. (City of Franklin)
Economic Loss – Profits lost from defective product should not be recovered in a tort action.
Should be handled by UCC. Rationale: Cost spreading would make products too expensive for
consumers. (Moorman v. Nat’l Tank)
o Wide disagreement in jurisdictions – where danger is created by defective product.
“Economic loss“ if harm was the foreseeable consequence from failure of product to work
properly. (Am Fire and Casualty v. Ford)
Defenses for Products Liability
Abnormal Misuse of the Product – tied to Assumption of Risk but more using a product in a way
not intended for use.
Adequate Warning and Instruction – Area of drugs, often Doctors will bare risk of harm from drug
side-effects b/c they are in the best position to authorize use and inform the patient who may not have
the capacity to understand the risks.
Gov’t Contract Defense: Good defense in Products Liability case. Extension of Gov’t immunity from
tort claims.
State-of-the-Art Defense: Manufacturer claims design was based on industry standard.
o Some Cts. have claimed it’s not a defense; obligation to reasonable safety go beyond
industry standard or custom.
31
Torts Exam Format
 All question weighed equally.
1) 20 T/F questions w/ option to explain answer(no penalty for wrong explanation)
(1 hr)
2) Test doctrine w/ Essay, comparing and contrasting legal rules
(1 hr)
3) Issue Spotter – who’s liable to whom, for what from a big fact pattern. May be easier to break it into
potential law suits, instead of categories for actions.
(1hr)
4) Policy Oriented Essay – addressing goals and assumptions of Tort law in gen’l.
(1hr)